Stabile v. McCarthy

Decision Date13 November 1957
Citation145 N.E.2d 821,336 Mass. 399
PartiesHarry J. STABILE, Jr., trustee, v. Warren E. McCARTHY et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Paul G. Counihan, Boston, for plaintiff.

George H. Kidder, Boston, for defendants.

Before WILKINS, WILLIAMS, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

This is an action to recover a deposit made at the time of the signing by the plaintiff, on February 11, 1955, of an agreement for the purchase of twenty-seven acres of land in Wilmington. The deed was to be delivered, and the balance of the purchase price paid, on April 22, 1955.

The agreement contained the following special provision: 'This agreement is subject to the right of the buyer in the event that he shall have been unable to obtain the approval of the Wilmington Planning Board of his proposed subdivision of the * * * premises prior to the date * * * set for performance * * * at his option to cancel this agreement and claim the return of his deposit, in which event this agreement shall terminate without further obligation on the part of either party * * *.'

The plaintiff waived formal tender of the deed by the defendants and sought, under the provision just quoted, to cancel the agreement and obtain return of the deposit. This the defendants refused.

The relevant testimony summarized in the bill of exceptions, was to the following effect. The plaintiff, after February 11, 1955, caused an engineer to prepare a 'working plan' of subdivision of the land, showing twenty-nine house lots on twenty-seven acres. This plan, as introduced in evidence, still had 'considerable engineering work * * * to be done' on it before it could be presented for the board's approval. The plaintiff and others had six conversations with the building inspector of Wilmington, at one of which the engineer was present. Although he attempted to meet with the planning board, he did not succeed in speaking with all members of the board between the date of the execution of the agreement and the date set for passing papers. He did meet twice with the town manager and once with a health officer of the town known as the sanitarian.

As a result of his talk with the sanitarian, who gave him instructions on test procedures, the plaintiff made percolation tests (which the sanitarian declined to make himself because no definitive plan approved by the planning board had been referred to the board of health) at various points on the land to determine its suitability for septic tanks and cesspools. Some of these tests met the standards outlined to him by the sanitarian and some did not.

The plaintiff made no formal application to the planning board for approval of his subdivision plan between February 11 and April 22, 1955. The plan could not be approved by the planning board because it showed that each of seven out of twenty-nine lots had an area of less than the 22,500 square feet per lot required by the planning board's dregulations. The plaintiff failed to go forward with his plan because 'the results of the percolation tests were so poor that he didn't believe the plan could be accepted.' He stated that 'he concluded that his * * * tests would be unacceptable as a result of his conversations 1 with the * * * sanitarian and his meetings with * * * the building inspector.'

The sanitarian testified in substance that the percolation tests made by the plaintiff were performed (except for the season in which they were made) in customary manner and that some of them indicated that septic tanks installed on part of the land in its then state would not have functioned properly. However, there is no indication in the record that the sanitarian saw the results of the tests prior to April 22, 1955, the date set for the conveyance. Regulations of the planning board provide that no residential subdivision will be approved unless the board determines, after adequate investigation by the sanitarian, that the land can be used for residential purposes without danger to health.

The case was heard by a judge of the Superior Court sitting without a jury. He made subsidiary findings of fact and an ultimate finding for the plaintiff in an amount slightly in excess of the deposit. The defendants duly saved exceptions (a) to the trial judge's refusal to give their sixth requested ruling that there was 'no evidence * * * to warrant a finding that the plaintiff made a reasonable effort to obtain the approval of his * * * subdivision by the' board and (b) to the trial judge's conclusion 2 that 'on all the evidence * * * the plaintiff was excused from * * * further effort to make a plan * * * because of the virtual condemnation of the site by the sanitarian and his declaration that the board of health would not approve it.'

1. The plaintiff in his brief in effect concedes that he was bound to use reasonable efforts to obtain planning board approval. The trial judge so ruled. The ruling was correct. The special provision, although ambiguous, was inserted to free the plaintiff of obligation to purchase by giving the plaintiff the power to cancel the agreement, upon the happening of a condition precedent, namely, 'that he shall have been unadle to obtain the approval of the * * * planning board' (emphasis supplied).

The parties quite clearly intended a binding contract to purchase, not a mere option (compare Proctor v. Union Coal Co., 243 Mass. 428, 432, 137 N.E. 659; C. J. Hogan, Inc., v. Altlantic Corp., 332 Mass. 322, 328, 124 N.E.2d 905) in the plaintiff to purchase without any obligation of affirmative action on his part. If the parties had intended no obligation on the plaintiff to take action they could have used a clause in the special provision importing no suggestion of obligation, inability or impossibility, or could have made the vendor's obligation to convey and the vendee's obligation to purchase 'subject to' the granting of approval (compare Connor v. Rockwood, 320 Mass. 360, 69 N.E.2d 454; Livoli v. Stoneman, 332 Mass. 473, 475-476, 125 N.E.2d 785), instead of making inability to obtain planning board approval a condition precedent to the exercise of a right to cancel.

Since no subdivision plan existed when the agreement was signed, the plaintiff, in order to cancel, must show more than inability to obtain approval of a particular then existing plan. It must have been contemplated that he would prepare a plan conforming (as the plaintiff's rough working plan did not) to the basic applicable zoning laws and planning board regulations, and that he would try reasonably to obtain planning board approval (if necessary, with adjustments, not involving disproportionate expense, to meet the board's views) prior to the date set for the conveyance. Under the circumstances, the special provision implied that the plaintiff must do at least this much, before the condition precedent (inability to obtain approval) to cancellation would be satisfied. See Sorota v. Baskin, 334 Mass. 123, 134 N.E.2d 428 (especially request numbered 1 set forth at page 124, footnote 1, mentioned with approval at page 126 and at pages 429, 430 of 134 N.E.2d). See, also, Lach v. Cahill, 138 Conn. 418, 422, 85 A.2d 481; Corbin, Contracts, § 570. Compare Eno Systems, Inc., v. Eno, 311 Mass. 334, 339, 41 N.E.2d 17; Eastern Paper & Box Co., Inc., v. Herz Mfg. Corp., 323 Mass. 138, 141-142, 80 N.E.2d 484.

The special provision, to be sure, contains no express requirement (compare Widebeck v. Sullivan, 327 Mass. 429, 433, 99 N.E.2d 165) that the plaintiff use reasonable efforts to obtain approval. The absence of such an express requirement, even if found in other analogous provisions of the contract, is not significant here, where the circumstances make it plain that reasonable efforts must be made by the plaintiff before his right of cancellation arises. 3

2. Even under an express requirement that 'reasonable effort' be employed, uncertainty necessarily will exist about what effort must be made. Compare Widebeck v. Sullivan, 327 Mass. 429, 99 N.E.2d 165, with Ross & Roberts, Inc., v. Simon, 326 Mass. 12, 15-17, 92 N.E.2d 570...

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38 cases
  • Ching v. Case
    • United States
    • Hawaii Supreme Court
    • August 23, 2019
    ...calculated to obtain the approval by action or expenditure not disproportionate in the circumstances.’ " (quoting Stabile v. McCarthy, 336 Mass. 399, 145 N.E.2d 821, 824 (1957) )). And, while the lease may not contain a provision expressly allowing the State to terminate the lease, it does ......
  • Rowan Companies, Inc. v. Wilmington Trust
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    • February 4, 2010
    ...unable to obtain a commitment for both a non-recourse construction loan and a non-recourse permanent loan"); Stabile v. McCarthy, 336 Mass. 399, 403, 145 N.E.2d 821, 823-24 (1957) (holding that contract that was "subject to the right of the buyer in the event that he shall have been unable ......
  • Banco Do Brasil, S.A. v. 275 Wash. St. Corp.
    • United States
    • U.S. District Court — District of Massachusetts
    • August 17, 2012
    ...What constitutes “reasonable efforts” is a question of fact that must be assessed in each instance. Stabile v. McCarthy, 336 Mass. 399, 404, 145 N.E.2d 821, 824 (1957). “However, the plaintiff, in order to show that he has done enough to meet the condition precedent to his right to cancel, ......
  • Informed Physician Services, Inc. v. Blue Cross and Blue Shield of Maryland, Inc.
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    • Maryland Court of Appeals
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    ...v. Kieckhefer, supra, 114 Ariz. 127, 559 P.2d 683; sechrest v. safiol, 383 mass. 568, 419 n.e.2d 1384 (1981); stabile v. McCarthy, 336 Mass. 399, 145 N.E.2d 821 (1957); Leonard v. Koval, 187 Ill.App.3d 924, 135 Ill.Dec. 343, 543 N.E.2d 911 (1989); Alliance Financial Services v. Cummings, 52......
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1 books & journal articles
  • Statutory and Suggested Definitions
    • United States
    • Maryland State Bar Association Contract Drafting and Review for the Maryland Lawyer (MSBA) Chapter Four Definitions
    • Invalid date
    ...Rev. 1 (1984). [55] Allview Acres, Inc. v. Howard Inv. Corp., 229 Md. 238, 182 A.2d 793 (1962) (citing with approval Stabile v. McCarthy, 145 N.E.2d 821 (Mass. 1957)). [56] Corps. & Ass'ns § 9A-101(b).[57] 191 Md. 648, 62 A.2d 561 (1948). [58] Bus. Reg. § 14-101(b). [59] Corps. & Ass'ns § 1......

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